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presented.

WISCONSIN
SUPREME COURT

TUESDAY,
FEBRUARY 12, 2013

9:45
a.m.

This is
a review of a decision of the Wisconsin Court of Appeals, District I
(headquartered in Milwaukee), which affirmed a Milwaukee County Circuit Court
decision, Judge Thomas P. Donegan, presiding.

This
case examines several issues arising from a prison phone-bill scam. The central
question before the Supreme Court is whether the electricity used to power a
telecommunications service may be considered “tangible property” under Wis.
Stat. § 943.20, the state’s theft statute.

Some
background: Matthew R. Steffes, an inmate at the Waupun Correctional
Institution,was found guilty of two
counts of conspiracy to commit theft of property exceeding $10,000 in value by
fraud.

Steffes’
fellow inmate, Joshua Howard, had worked with individuals outside of the prison
to acquire phone numbers in fictitious names or “stolen” names. Those telephone
lines were known as “burn out” lines because they would eventually be turned
off when the telephone company learned that no one would pay for them.

The
state presented testimony, recordings of telephone calls, and letters between
Steffes and Howard that showed Steffes’ involvement in using the “burn out”
lines.Steffes claimed that there was no
evidence that he had been involved in the conspiracy when the lines were being
set up, and that he merely used the lines after they had been acquired by
others.In the approximately 18 months
between June 2002 and December 2003, Steffes made more than 320 calls on the
lines that totaled 6,562 minutes of usage without paying for them.

Although
telephone company (SBC) representatives were not able to provide an exact
amount and value of electricity used, the total unpaid charges for the calls
made on just three of the lines exceeded $26,000.The question of value in any theft case is
significant because it determines the category of offense and range of
punishment for a particular theft.By
valuing the stolen property using the value of the standard charges for the calls,
the state succeeded in convicting Steffes of two felonies.

The
circuit court imposed concurrent sentences of 24 months of initial confinement
and 30 months of extended supervision that were consecutive to Steffes’ other
sentences. The jury acquitted Steffes of the one charged count of identity
theft.

The
Court of Appeals affirmed the conviction. It reasoned that the telephone
service theft scheme in which Steffes participated was covered by the statute
because the defendants were actually stealing the electricity used to power the
telephone network, and electricity is expressly included within the statutory
definition of property.The theft of
services only is not included in the language of the statute.

Steffes
has asked the Supreme Court whether the elements of “theft by fraud,” contrary
to Sec. 943.20(1)(d), Stats., require that the defendant made an affirmative
false promise to pay that induced SBC to provide the telephone service. Steffes
argues that there was no evidence of a false promise to pay so he could not be
convicted of theft by fraud. The Court of Appeals said that the statutory
language required only a false representation and did not contain any
requirement that there be an express promise of payment to the victim.

Another
issue raised by Steffes is whether the trial court erred in instructing the
jury as to the elements of “theft by fraud” as alleged in the criminal
complaint; and, further, whether defense counsel was ineffective for failing to
object to the defective jury instruction. Finally, the case presents the issue of
how to value the property that was stolen here.

WISCONSIN
SUPREME COURT

TUESDAY,
FEBRUARY 12, 2013

10:45
a.m.

This is
a review of a decision of the Wisconsin Court of Appeals, District II
(headquartered in Waukesha), which affirmed a Waukesha County Circuit Court
decision, Judge Donald J. Hassin, presiding.

This insurance case arises from
an automobile collision involving a volunteer firefighter who ran a red light
in his personal car while responding to the station for a call. The Supreme
Court has been asked to examine whether driving by a volunteer firefighter on
the way to the fire station in response to a call is a discretionary activity,
entitling the firefighter to government immunity from tort liability.

Some background: Parnel P.
Burditt was a volunteer firefighter and a lieutenant for the Okauchee Fire
Department (OFD). He also served as Emergency Medical Services director.

On a dark and rainy evening,
Burditt responded to a dispatch from the fire department in his personal
vehicle, which was equipped with emergency lights but no siren.Burditt’s emergency lights were activated
when he entered a traffic intersection against a red light, eventually colliding
with a vehicle driven by Frank Brown.The collision injured Marilyn Brown and Delores Schwartz, passengers in
Frank Brown’s vehicle.

Marilyn Brown and Schwartz
(collectively, “Brown”) sued Burditt, the OFD, and their insurers, alleging
that Burditt’s negligence was a substantial factor causing the collision.Burditt moved for summary judgment, arguing
that he was immune from personal liability for the accident pursuant to Wis.
Stat. § 893.80(4) because he was acting within the scope of his duties for the
fire department when the accident occurred.The trial court granted summary judgment in favor of Burditt and the
OFD.

Brown appealed, and the Court of
Appeals affirmed. The Court of Appeals concluded that Burditt was operating
within the scope of his employment for purposes of governmental immunity
because volunteer firefighters are actuated by a purpose to serve the fire
department from the moment they choose to respond to an emergency call.This is so because when an emergency arises,
the OFD’s volunteers are expected to respond, if possible, from wherever they
are currently located, and volunteers must obey the orders of their commanding
officers once they choose to respond to a call.

The Court of Appeals further held
that the fact that Burditt violated the traffic code did not mean that he was
liable for negligence in his decision to proceed through the intersection.The court held that Burditt’s decision to
proceed through the intersection against the red light was discretionary, and
thus Burditt was immune from liability for negligence based on that decision.

A decision by the Supreme Court
could clarify whether government immunity applies to certain public employees,
in this case volunteer firefighters, when they violate express statutory
prohibitions.

WISCONSIN
SUPREME COURT

TUESDAY,
FEBRUARY 12, 2013

1:30
p.m.

This is
a certification from the Wisconsin Court of Appeals, District II (headquartered
in Waukesha). The Court of Appeals
may certify cases that it believes cannot be resolved by applying current
Wisconsin law. The Wisconsin Supreme Court, as the state’s preeminent
law-developing court, often accepts such certifications from the Court of
Appeals. This case originated in Waukesha County Circuit Court,
Judge Andrew T. Gonring, presiding.

2011AP1176/77
McLeod
v. Mudlaff

This
certification involves two consolidated cases. The Court of Appeals asks the
Supreme Court to decide whether, under Wis. Stat. § 767.313(2), a court has the
authority to entertain an action to declare a marriage void after one of the
spouses has died.

Some
background: Nancy and Luke Laubenheimer married on Aug. 18, 1972.Luke died on Aug. 24, 2001.In 1999, about two years before Luke’s death,
Nancy executed a will that left her estate to Luke.In the event Luke predeceased her, the bulk
of her estate was to go to Luke’s three children whom Nancy had never
adopted.Nancy never updated her will
after Luke’s death.

In Jan.
2007, Nancy suffered a stroke and her health began to decline. It is unclear
exactly when Nancy’s second husband, Joseph McLeod, came into Nancy’s life, but
by March 2007 Joseph and Nancy were living together.

On Oct.
1, 2008, Nancy suffered another stroke.On Oct. 11, 2008, Nancy’s doctors signed a “statement of incapacitation”
opining that Nancy was “unable to receive and evaluate information effectively
or to communicate decisions,” and that she lacked “the capacity to manage
health care decisions.” The statement of incapacitation activated Nancy’s
health care power of attorney,which
named Nancy’s cousin, Diane Kulpa, as her agent for health-care decisions.

Mudlaff’s
petition alleged that Nancy “suffers from severe cognitive disability due to
several strokes.”The petition alleged
that Joseph had removed Nancy from the nursing home against medical advice and
that Nancy needed a guardian to readmit her to the nursing home.The petition contained an examining
physician’s report dated Jan. 15, 2009, which opined that Nancy was incompetent
and in need of a guardian.

On Jan.
27, 2009, the trial court appointed Nancy’s cousin, Diane Kulpa, as a temporary
guardian of Nancy’s person.The court
appointed Nancy’s sister as temporary guardian of Nancy’s estate.The court found that there was a “reasonable
likelihood” that Nancy was incompetent.

Nancy
died on Feb. 5, 2009.

On June
9, 2009, Joseph filed a petition for the formal administration of Nancy’s
estate.Joseph requested that the court
appoint him as personal representative of the estate.Joseph filed Nancy’s 1999 will with the court
but also asserted his Wis. Stat. § 853.12 right to a share of Nancy’s
estate.Section 853.12(1) provides that
if a testator executed a will prior to marrying the surviving spouse, the
surviving spouse is entitled to a share of the estate.The surviving spouse’s share is equal to what
his or her share would be if the testator died intestate, minus devises made to
the testator’s children and their issue.See § 853.12(2).As Nancy did not have any biological or
adoptive children, Joseph argued that he was Nancy’s sole heir.

Mudlaff
also filed a petition for the formal administration of Nancy’s estate.Mudlaff argued that Nancy’s marriage to
Joseph was invalid on the grounds that Nancy lacked the requisite mental
capacity to enter into a marriage, and therefore Joseph had no right to a
surviving spouse’s share of Nancy’s estate.

The
trial court denied Mudlaff’s petition on the grounds that Wis. Stat. §
767.313(2), quoted below, prohibits a court from annulling a marriage after the
death of a party to the marriage. Mudlaff appealed.The Court of Appeals certified the matter to
this court.

Wis.
Stat. § 767.313(2) provides that “[a] judicial proceeding is required to
annul a marriage.A marriage may not
be annulled after the death of a party to the marriage.”The trial court ruled that, given Nancy’s
death, § 767.313(2) deprived it of any power to address Mudlaff’s
petition.

Mudlaff
argued on appeal that while the court could not annul Nancy’s marriage
to Joseph, it did have the power to void the marriage.Mudlaff pointed to various provisions of Wis.
Stat. ch. 765 which state that a marriage is invalid if one of the parties was
incompetent at the time of marriage. Under Wis. Stat. § 765.21, a marriage entered
into in violation of these provisions “shall be void.”

Mudlaff
argues that because Nancy was not competent when she married Joseph, the
marriage was void from its inception, and thus the court could “void” the
marriage even though it could not “annul” the marriage.

In its
certification, the Court of Appeals traced the historical development of
marriage law from statehood to 2005 and examined various terms, including:
“valid” marriages, “void” marriages, “voidable” marriages, “annulled”
marriages, and “declared null and void” marriages.

In the end, the Court of Appeals
asked the Supreme Court to decide how the statutes and the case law should be
applied to these consolidated cases.

WISCONSIN
SUPREME COURT

MONDAY,
FEBRUARY 25, 2013

9:45
a.m.

This is
a review of a decision of the Wisconsin Court of Appeals, District III
(headquartered in Wausau), which affirmed an Oneida County Circuit Court
decision, Judge Mark Mangerson, presiding.

This case examines what
constitutes interrogation and what constitutes custody under Miranda v. Arizona, 384 U.S. 436 (1966).

Some background: In a decision
affirmed by the Court of Appeals, Matthew A. Lonkoski was convicted of
recklessly causing great harm to a child and neglecting a child resulting in
the child’s death. Lonkoski’s 10-month-old daughter, Peyton, was found dead by
her parents, Lonkoski and Amanda Bodoh.The autopsy determined that Peyton’s blood and urine contained a deadly
amount of morphine and hydromorphone.

Detectives asked Bodoh to come to
the sheriff’s department for an interview.Lonkoski drove her to the interview and waited in the lobby while Bodoh
was interviewed.After speaking with
Bodoh, the officers sent her to another room and brought Lonkoski into the
interview room for an interview that was video recorded.Detective Sara Gardner and Lt. Jim Wood
interviewed Lonkoski, with Lonkoski sitting in the corner furthest from the
door of the interview room.

Wood informed Lonkoski that he
was not under arrest.He stated that he
had closed the door to the interview room so other people could not hear the
interview.For about the first
half-hour, the detectives and Lonkoski talked about events since Peyton’s
death.Then Wood told Lonkoski that an
autopsy showed that Peyton died of a morphine overdose.Loknkoski asked the detectives if he was
being accused of giving his daughter morphine.The following exchange then occurred:

Lonkoski: I want a lawyer.I want a lawyer now.This is bullshit.

Wood: Okay.

Lonkoski: I would never do that to my kid, ever. I wasn’t even at the apartment
at all except at night. Why are you guys accusing me?

Wood: I didn’t accuse you.

Gardner: We were just asking.

Lonkoski: There is this is is is is is is is is insane.

Wood: I have to stop talking to you though ‘cause you said you wanted a
lawyer.

Lonkoski: Am I under arrest?

Wood: You are now.

Lonkoski: Then I’ll talk to you without a lawyer . . . I, I
don’t want to go to jail . . . .

Shortly after this exchange,
Lonkoski was escorted from the room to smoke a cigarette and use the
bathroom.When Lonkoski, Gardner, and
Wood returned to the room, Wood read Lonkoski his Miranda rights and
Lonkoski agreed to answer further questions.Over approximately two additional hours of questioning, Lonkoski made
incriminating statements; specifically, that he and a friend had used morphine
– the drug that killed Peyton – around the time of Peyton’s death. Lonkoski was
again interrogated four days later and made more incriminating statements.

Lonkoski moved to suppress his
statements to police as violative of his Miranda rights.After the trial court denied Lonkoski’s
motion to suppress, Lonkoski pled guilty to and was convicted of recklessly
causing great harm to a child and neglecting a child resulting in the child’s
death.

The Court of Appeals affirmed the
conviction, concluding that Lonkoski voluntarily, knowingly and intelligently
waived his Miranda rights.

Lonkoski now asks the Supreme
Court to review whether a police officer ceases interrogation as required by Edwards
v. Arizona [, 451 U.S. 477 (1981)] where, in response to the interrogated
person’s invocation of the right to counsel, the officer places the person
under arrest.Lonkoski also asks the
court to review whether the right to invoke Miranda v. Arizona, 384 U.S.
436 (1966) when custodial interrogation is “imminent or impending” applies
where interrogation is ongoing but custody is imminent.

WISCONSIN
SUPREME COURT

MONDAY,
FEBRUARY 25, 2013

10:45
a.m.

This is
a review of a decision of the Wisconsin Court of Appeals, District I
(headquartered in Milwaukee), which affirmed a Milwaukee County Circuit Court
decision, Judge Jeffrey A. Conen, presiding.

2009AP2916-CR
State v. Sahs

This case examines whether a
defendant’s statements to his probation agent, in which he confessed to a new
crime of possession of child pornography, were statements compelled as a matter
of law in the context of probation.

Some background: Gregory M. Sahs
was convicted, following entry of a guilty plea, of one count of possession of
child pornography and placed on probation for three years.The state learned of this crime only because
of statements Sahs made to his probation agent while Sahs was on probation for
an earlier offense.

Before being administered a
polygraph test, Sahs admitted to his probation agent that he kept a computer at
the home of a friend and had accessed child pornography. Sahs acknowledged this
confession would result in revocation.

The agent contacted police, and
on Jan. 24, 2007, detective Jacque Chevremont retrieved the computer from the
friend’s home. The following day, Chevremont met with Sahs while he was in
custody and read him his Miranda rights. Sahs indicated he
understood.Sahs waived his right to an
attorney and gave a statement admitting to downloading child pornography while
on probation. Sahs’s probation was revoked and he began serving an 18-month
revocation sentence.

Meanwhile, police obtained a
search warrant and confirmed there was child pornography on the computer.On June 26, 2007, Sahs agreed to speak
with Chevremont and again waived his Miranda rights.He admitted to making statements to his
probation agent regarding downloading child pornography while on
probation.

On June 28, 2008,Sahs was charged with two counts of
possession of child pornography, contrary to Wis. Stat. § 948.12(1m) and (3)(a), for the contents found on his
computer.Sahs pled not guilty to both
counts.

On Oct. 27, 2008, Sahs filed two
motions to exclude this evidence.Sahs
moved to suppress the statements he made to his probation agent on the grounds
that the statements were compelled, incriminating and testimonial. Sahs claims
that his oral confession to his agent was written down on a state Department of
Correction’s form.Sahs stated that the
probation agent checked a box on this form, indicating that Sahs was required
to provide the information, but it could not be used against him in a criminal
proceeding.

Sahs also moved to suppress
evidence of child pornography discovered on the computer and the ensuing
statements made to police investigators on the theory that this evidence was
obtained as a direct consequence of the compelled statements made to the agent.

The trial court denied Sahs’s
motions and Sahs entered a guilty plea.He appealed, and the Court of Appeals affirmed the trial court’s
determination that Sahs’s statements were not compelled, noting that the mere
fact that an individual is required to appear and report truthfully to his or
her probation agent is insufficient to establish compulsion.SeeState v. Mark, 2006 WI 78, ¶25, 292 Wis. 2d 1, 718 N.W.2d 90 (citing Minnesota
v. Murphy, 465 U.S. 420 (1984)).

Because the circuit court found
that the statements were voluntary, the state maintains that Sahs did not meet
his burden in showing that his initial statement was compelled.

Sahs asks the Supreme Court to
review whether the Court of Appeals erred in denying his appeal based on his
statement to the probation agent that was allegedly not in the record, and
whether the trial court erred in concluding that defendant’s statement to the
probation agent was not coerced.

WISCONSIN SUPREME COURT

MONDAY, FEBRUARY 25, 2013

1:30 p.m.

This
is a review of a decision of the Wisconsin Court of Appeals, District II
(headquartered in Waukesha), arising from a Racine County Circuit Court
decision, Judge Eugene A. Gasiorkiewicz, presiding.

This child sex assault case
reaches the Supreme Court after an interlocutory appeal involving pretrial
discovery orders by the trial court. The Supreme Court reviews several issues
and underlying questions arising from the defendant’s request to view therapy
records of the girl he is accused of assaulting. The case is stayed in the
trial court, pending a decision by the Supreme Court.

Among the issues raised by the
state in its petition for review:

- Whether defendants
have a constitutional right to disclosure of privately-held privileged records.

- If defendants have
such a constitutional right, does that right trump privilege statutes?

- If defendants have
such a constitutional right, did the defendant in this case establish a
constitutional right to disclosure of the girl’s therapy records?

Some background: The state
charged Samuel Curtis Johnson IIIin
March 2011 with repeated sexual assault of a girl when she was between the
ages of 12 and 15 years old. The state alleged that Johnson touched the girl’s
breasts, buttocks, and vagina under her clothes. There appears to be no
physical evidence of sexual assault, the Court of Appeals wrote in its
discussion of the case.

Johnson moved the trial court for
“in camera” inspection (i.e., the trial judge’s inspection in chambers) of
the girl’s therapy records. The state argued that Johnson had not made the
requisite preliminary showing for in camera inspection. In particular, the
state said that Johnson failed to show that any relevant records existed, or
that the girl was suffering from a mental illness at the time of the alleged
assaults that would affect her ability to perceive the alleged events or relate
the truth.

Through her counsel, the girl
informed the court that she had reviewed the facts set forth in Johnson’s
motion seeking in camera inspection of her records and that those facts were
accurate.

The girl’s counsel then notified
the court that the girl would not consent to in camera inspection of her
therapy records, and that she was invoking her “absolute statutory privilege”
to refuse to disclose her records. Counsel indicated that she the girl
understood the possible impact her decision would have on the state’s prosecution
of Johnson.

The state sought an order from
the court compelling the production of the girl’s therapy records regardless of
her invocation of privilege. The girl objected.

Johnson and the girl argued that
the only remedy available was for the trial court to bar her from testifying
until such time as she consents to the release of her privileged records. The
state responded that the physician-patient privilege was not absolute and the
appropriate remedy was for the trial court to issue a subpoena compelling the
release of the records directly to the court for in camera review.

The trial court considered both
options and found neither appropriate.The court instead issued a six-part order:

1.The court would honor the
girl’s assertion of the privilege; and

2.allow the girl to testify; and

3.inform the jury that she had been
ordered to release her therapy records for in camera inspection; and

4.inform the jury that the girl had a
privilege to refuse the production of her records; and

5.inform the jury that she had, in fact,
refused the court’s order; and

6.inform the jury that, as a result of her
refusal, a presumption exists that the contents of the records would have been
helpful to the defense.

The state and Johnson both
petitioned the Court of Appeals for leave to appeal. The state sought review as
to whether Johnson made a sufficient showing under Shiffra and Green
to obtain an in camera inspection. The state also sought review of the trial
court’s refusal to compel the production of the girl’s therapy records
following her invocation of privilege. Johnson sought review of the trial
court’s order allowing the girl to testify, despite her refusal to release her
therapy records for in camera review.

The Court of Appeals granted leave
to appeal, and ultimately: (1) affirmed the trial court’s order for in camera
inspection; (2) reversed the trial court’s order allowing the girl to testify
while also refusing to release her records; and (3) remanded for further
proceedings consistent with the court’s opinion.

The Court of Appeals held that
the therapy occurred during the time period of the alleged assaults made it
reasonably likely the records contained relevant information necessary to a
determination of guilt or innocence.

In a dissent, Chief Judge Richard
S. Brown, District II Court of Appeals, agreed with the majority that
Johnson made the requisite preliminary showing required for in camera review,
but disagreed that Shiffra necessarily requires suppression
of the girl’s testimony.

WISCONSIN
SUPREME COURT

TUESDAY,
FEBRUARY 26, 2013

9:45
a.m.

This is
a certification from the Wisconsin Court of Appeals, District II (headquartered
in Waukesha). The Court of Appeals
may certify cases that it believes cannot be resolved by applying current
Wisconsin law. The Wisconsin Supreme Court, as the state’s preeminent
law-developing court, often accepts such certifications from the Court of
Appeals. This case originated in Manitowoc County Circuit Court,
Judge Jerome L. Fox, presiding.

In this
certification, the Supreme Court examines a possible inconsistency in provisions
of Chpt. 51, the state’s involuntary commitment law.

More
specifically, the Court of Appeals asks whether § 51.35(1)(e) mandates a
hearing within 10 days for all transferred patients, including those
transferred for medical reasons under § 51.35(1)(e)1., or whether the mandate
applies only to those transferred due to a violation of the conditions of
outpatient placement as set forth in § 51.35(1)(e)2.-5.

Some
background: On Sept. 22, 2011, Samuel J.H., who was subject to an involuntary
commitment order under ch. 51, Stats., was transferred from an outpatient
facility to inpatient care.He was given
a written notice of his rights under § 51.35(1)(e)1.Samuel objected to the transfer, and counsel
was appointed for him and a petition for review of transfer was filed.Relying on the Court of Appeals’ holding in Fond
du Lac County v. Elizabeth M.P., 2003 WI App 232, ¶¶26, 28, 267 Wis. 2d
739, 672 N.W.2d 88, Samuel argued that he was entitled to a hearing within 10
days of transfer.He also asked to be
returned to outpatient status.

A
hearing was held on Samuel’s petition on Dec. 19, 2011.During the hearing the circuit court
commented that it found the language in Elizabeth M.P. “at least mildly
confusing.”The circuit court concluded
that a threshold question presented was whether Samuel was transferred due to a
rule violation, and the court invited testimony on the reason for Samuel’s
transfer.

Samuel’s
social worker said Samuel had been becoming increasingly psychotic and his
behavior had become out of control to the point where he was totally delusional
and punching holes in the wall.The
social worker testified Samuel did not directly threaten anyone but he
reportedly made a general threatening statement to the effect of “we’re going
to hell and somebody needs to get shot.”The social worker said Samuel said things that did not make sense and
was doing a lot of nonsensical chanting.The social worker said Samuel was not transferred because of a threat or
act to harm himself or others.

The
circuit court concluded Samuel was transferred for medical reasons and thus was
not entitled to the mandatory hearing under § 51.35(1)(e)2.The circuit court acknowledged that although Elizabeth
M.P. expressly addressed § 51.35(1)(e)2. when discussing a mandatory
hearing within 10 days, it “threw the net over everything” in saying more
broadly that a transfer under § 51.35(1)(e) requires a hearing within 10
days.The circuit court concluded the
broad statement in Elizabeth M.P. was not consistent with the language
of the statute.

In its
certification, District II Court of Appeals says the issue presented in Elizabeth
M.P. was whether the circuit court had jurisdiction to transfer the subject
to inpatient status when judicial review of the county’s decision to transfer
her was not held within 10 days as required by § 51.35(1)(e)3. District II says
the Elizabeth M.P. court blurred the distinction between the two types
of transfer.

District II says the
inconsistency in Elizabeth M.P. was noted both by the circuit court and
by the county, and while District II says the inconsistency is apparent to it
as well, only the Supreme Court may address it.

WISCONSIN
SUPREME COURT

TUESDAY,
FEBRUARY 26, 2013

10:45
a.m.

This is
a review of a decision of the Wisconsin Court of Appeals, District III
(headquartered in Wausau), which affirmed a Outagamie County Circuit Court
decision, Judge Michael W. Gage, presiding.

This case examines the statutory
standard for determining whether a person is competent to refuse medication and
treatment for mental illness.

More specifically, the Supreme Court
is asked whether Outagamie County failed to prove that Melanie L. was
incompetent to refuse medication and treatment when the evidence showed that
Melanie recognized she is mentally ill and needs medication.

Some background: In 2009, when
Melanie was living with her mother in Michigan, she asked her mother to take
her to the hospital because she was anxious, having strange thoughts, and was
unable to eat or sleep.She was
hospitalized for nine days and was diagnosed with major depressive disorder with
psychotic features.She was prescribed
Risperdal.Melanie stopped taking the
medication due to side effects and because she could not afford to pay for it.

Melanie moved to Wisconsin in
2010.She got her own apartment and
started taking classes to pursue a nursing career.In February of 2011, Melanie was detained for
mental health treatment after her boyfriend took her to the hospital.Melanie told an examiner psychiatrist that
she felt similar to when she had the episode two years earlier in Michigan.Melanie was hospitalized for two weeks and
diagnosed with psychotic disorder. She was treated with medication, including
Seroquel, which she said was effective and asked later to be prescribed again.

At the probable cause hearing
following the emergency detention, Melanie agreed to the probable cause
findings necessary to continue her detention and she agreed to the entry of a
temporary medication order.At a final
hearing on Feb. 18, 2011, Melanie stipulated to the entry of a six-month
commitment order and an involuntary medication order.During the six-month commitment, Melanie had
been under the care of the county’s psychiatrist, Dr. Milagros Cuaresma
Ambas.

About a month before the
six-month commitment was to expire, the county filed a petition seeking a
12-month extension and another order requiring Melanie to take prescribed
medications.A hearing was held on the
petition on Aug. 17, 2011.The county’s
case manager, Kate Siebers, who had never met with Melanie in person and had
been assigned to her case for two months, testified Melanie lacked insight into
her mental illness and the purpose of treatment.

A court-appointed examiner, Dr.
Jagdish Dave, conceded Melanie could express an understanding of the risks and
benefits of psychotropic medication because of her educational background, but
she was not able to apply that understanding “to her advantage.”

The circuit court ordered an
extension of the mental health commitment and an involuntary medication order.
Melanie appealed, and the Court of Appeals affirmed.

On appeal, Melanie objected to
the involuntary medication order and argued the county failed to meet its
burden of proving she was not competent to refuse medication.

Melanie argued Dave’s opinion
that she was not competent to refuse medication did not fit the statutory
standard of incompetency because Dave testified she was incapable of applying
an understanding “to her advantage” instead of “to . . . her mental illness . .
. in order to make an informed choice.”Dave said Melanie did not resume taking medication after suffering a
miscarriage and did not voluntarily attend follow-up care.

Melanie also argued the evidence
supported a finding that she can apply an understanding of the advantages,
disadvantages, and alternatives to her mental illness. The Court of Appeals
rejected Melanie’s argument that the expert must recite the specific words of
the statute in order for the evidence to be sufficient. The Court of Appeals
said although Melanie requested Seroquel, she returned to Ambas to make that
request because the county prompted her to return.

Melanie argues that this case
presents the opportunity for this court to interpret and apply the competency
standard set forth in § 51.61(1)(g)4, governing the right to refuse medication
and treatment.She says that statute and
statutes with virtually identical language apply to individuals who are under a
mental health commitment and to those who are committed to a treatment facility
or receiving services for developmental disabilities, alcoholism, or drug
dependency, including commitments made under ch. 55 and to criminal defendants
found incompetent or not guilty by reason of mental disease or defect, under
ch. 971.

WISCONSIN
SUPREME COURT

TUESDAY,
FEBRUARY 26, 2013

1:30
p.m.

The
Wisconsin Supreme Court is responsible for supervising the practice of law in
the state and protecting the public from misconduct by lawyers.Lawyers must follow a code of ethics
developed by the Court.When there is an
allegation that a lawyer has acted unethically, the Supreme Court’s Office of
Lawyer Regulation (OLR) investigates, and, if warranted, prosecutes the
attorney.A referee - a court-appointed
attorney or reserve judge - hears the discipline cases and makes
recommendations to the Supreme Court. The lawyer involved in this case is a
prosecutor in Racine County.

2011AP1049-DOLR v.
Sharon A. Riek

In
this case, the Supreme Court will determine whether Sharon A. Riek, an
assistant district attorney in Racine County, violated the code of ethics for
lawyers, and if so, the penalty. More broadly, a decision in this case could
clarify standards that determine when Wisconsin prosecutors must reveal
discovered material favorable to the defense. In the process, the Court may
determine whether Wisconsin Supreme Court Rule 20:3.8 (f) includes a “Brady”
analysis, under Brady v. Maryland, 373 U.S. 83 (1963).

The
underlying criminal case:

In 2008, Tyrone Smith
was arrested, after a traffic stop, for possession of marijuana discovered in
the vehicle during the stop.At the
time, Smith was on extended supervision for possession with intent to
deliver cocaine. Isaiah Simpson was a passenger in
the car during the stop.

On Aug. 22, 2008, Simpson
confessed to a probation agent that the marijuana found in the vehicle belonged
to him, not Smith. The agent told Simpson to make a similar report to the
Racine County District Attorney’s Office.Smith’s attorney Mark Lukoff was made aware of Simpson’s confession to
the agent shortly after Simpson made it. Assistant District Attorney Sharon A.
Riek was assigned to prosecute Smith.

After a preliminary hearing,
Lukoff filed a Demand for Discovery and Inspection with the court and served it
upon Riek. to “[d]isclose to defendant any exculpatory evidence.”See § 971.23(1)(g).

Sometime after Sept. 19, 2008,
Lukoff received a copy of Simpson’s statement to the agent as part of the
materials for Smith’s revocation.On
Oct. 15, 2008, at Smith’s revocation hearing, the agent entered Simpson’s
confession into evidence. Smith based his defense at the revocation hearing on
Simpson’s confession.

On Oct. 27, 2008, the
administrative law judge (ALJ) declined to revoke Smith. The agent appealed the
ALJ’s decision, writing that Simpson failed to go to the district attorneys’
office and to report that the marijuana was his.

In early November 2008, Simpson
did go to the Racine County District Attorney’s Office, where he met with
District Attorney Michael E. Nieskes and informed Nieskes that the marijuana
belonged to him, not to Smith.As a
result of that November meeting, Nieskes wrote an unsigned and undated note
that stated: “Isiah Simpson 1010 Park Ave 637-9029 states that the dope is his
not Tyrone Smiths.”

According
to his subsequent affidavit, Nieskes verbally told Riek about his meeting with
Simpson and gave her the note later that morning.Riek does not recall receiving the note, but
she does recall being advised of the information contained in the note in
November of 2008.Riek did not
immediately disclose either the fact of the conversation or the note to the
defense.Riek did ask the sheriff’s
department to investigate Simpson’s claim.

On
March 26, 2009, while preparing for trial, Lukoff personally met with
Simpson.At this meeting, Lukoff learned
from Simpson that Simpson had met with Nieskes. Accordingly, that day, Lukoff
faxed a letter to Riek, asking for a copy of the information Simpson provided
to Nieskes.

The
next day, March 27, 2009, four days before trial, Riek sent Lukoff a copy of
the note. Her cover letter included the statement
that, “[a]s I indicated to you earlier today, based upon this note, I sent a
request to the Racine County Sheriff’s Department to have them follow up on
this information and Isiah Simpson declined to cooperate and provide a
statement.”

On March 30, 2009, Lukoff added
Nieskes as a defense witness and filed a Motion for a Special Prosecutor.When Simpson arrived for Smith’s trial on
March 31, 2009, Riek had a law enforcement officer interview Simpson.Simpson admitted to the law enforcement
officer that the marijuana was his, not Smith’s. Riek then moved to dismiss
Smith’s case.The charges were
dismissed.

The
lawyer regulation case:

On May 9, 2011, the
OLR filed a disciplinary complaint against Riek alleging that by failing to
promptly provide the defense with exculpatory information concerning a third
party’s admission of possessing marijuana the defendant was charged with
possessing, Riek violated SCR 20:3.8(f)(1) and Wis. Stat.
§ 971.23(1)(h), enforceable via SCR 20:8.4(f).The OLR sought a public reprimand and
imposition of costs.

On Aug. 6, 2012, the
referee assigned to the case, Michael Dubis, issued a report granting summary judgment
in favor of Riek, concluding that Riek did not violate either
SCR 20:3.8(f)(1) or § 971.23(1)(h).The referee stated that the exculpatory information in the Simpson note
was already in possession of the defense at least as early as Oct. 15, 2008, some
five months prior to trial.Notably, the
referee stated that SCR 20:3.8 and § 971.23(1)(h) “must include Brady’smateriality
standard.”

In Brady, the U.S. Supreme Court held “that the suppression by
the prosecution of evidence favorable to an accused . . . violates
due process where the evidence is material either to guilt or to punishment,
irrespective of the good faith or bad faith of the prosecution.”373 U.S. at 87.

The referee concluded, and Riek
supports the contention that SCR 20:3.8 must incorporate Brady’s
materiality requirement, as well as the requirement that the exculpatory
information be in the exclusive possession of the state to trigger disclosure
obligations.

The OLR contends that
SCR 20:3.8 imposes a higher standard on a prosecutor than Bradyrequires.The OLRpoints to the plain language of the Supreme Court Rule, an ABA
Formal Opinion, and a case from North Dakota in support of its position.